United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE
matter is presently before the Court on defendant's
motion to dismiss [docket entry 7]. Plaintiffs have not
responded to this motion and the time for them to do so has
expired. Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall
decide this motion without a hearing.
se complaint in this matter, while largely unintelligible,
appears to assert a claim for wrongful foreclosure regarding
real property in Farmington, Michigan. Plaintiffs allege that
defendant has obtained title using documents "made to
appear as genuine, which was false, but to appear
valid." Compl. ¶ 17. Defendant allegedly violated
the Real Estate Settlement Procedures Act "due to their
poor Bookkeeping of accounts." Id. ¶ 28.
The counts of the complaint are entitled "breach of
ownership," "violation of validation,"
"violation of the servicer performance agreement,"
"violation under the Uniform Commercial Code," and
unjust enrichment. For relief, plaintiffs seek a
determination that they hold fee simple title to the property
and that defendant's interest is invalid and
extinguished, along with damages in the amount of $2.1
seeks dismissal of the complaint pursuant to Fed.R.Civ.P.
12(b)(6) for failure to state a claim. To avoid dismissal,
"a complaint must contain sufficient factual matter ...
to 'state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombty, 550
U.S. 544, 570 (2007)). "A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Iqbal, 556
U.S. at 678. "Threadbare recitals of all the elements of
a cause of action, supported by mere conclusory statements,
do not suffice." Id. The "complaint must
contain either direct or inferential allegations respecting
all the material elements to sustain a recovery under some
viable legal theory." Mezibov v. Allen, 411
F.3d 712, 716 (6th Cir. 2005). In deciding a motion to
dismiss, the Court "must construe the complaint in the
light most favorable to the plaintiff and accept all of the
complaint's factual allegations as true."
Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 512
(6th Cir. 2001). Further, documents attached to or reference
in the complaint are deemed to be a part thereof.
See Fed. R. Civ. P. 10(c).
attached to defendant's motion show that in 2008
plaintiffs gave Draper and Kramer Mortgage Corporation a
mortgage in real property commonly known as 29645 Highmeadow
Road to secure repayment of a $246, 137 loan. Def.'s Exs.
A and B. In 2009, the mortgage was assigned to BAC Home Loans
Servicing, L.P. Def.'s Ex. C. In September 2017,
defendant, successor by merger to BAC Home Loans Servicing,
L.P., obtained a sheriffs deed following a foreclosure sale
that day. Def.'s Ex. D. This deed noted that the
statutory redemption period would expire in six months, i.e.,
on March 5, 2018. Defendant indicates that plaintiffs did not
redeem the property, a fact plaintiffs appear to concede by
requesting that the Court issue an order "Return[ing]
the property to its rightful owner." Compl.at 11.
defendant suggests several reasons why the complaint should
be dismissed, its first argument is dispositive: Plaintiffs
lack standing to sue because they lost any and all interest
in the property once the redemption period expired. As this
Court noted recently in a similar case,
[a]t the moment the redemption period expired, all of
plaintiffs rights in the property were extinguished and he
lost standing to assert any claims with respect to the
property. See Piotrowski v. State Land Office Bd,
302 Mich. 179, 185 (1942). Accord Steinberg v. Fed. Home
Loan Mortgage Corp., 2012 WL 4498297, at *2 (E.D. Mich.
Sept. 28, 2012) ("With the expiration of the redemption
period, a former owner can no longer assert a claim with
respect to the property"); Dixon v. Wells Fargo
Bank, 2012 WL 4450502, at *4 (E.D. Mich. Sept. 25, 2012)
("Michigan courts have long held that a plaintiff is
barred from challenging a foreclosure sale after the right to
redemption has passed"); Paige v. EverHome Mortgage
Co., 2012 WL 3640304, at *2 (Mich. App. Aug. 23, 2012)
("when the redemption period ended, [plaintiff] lost all
interest in the property"); Elhady v. Citimortgage,
Inc., 2012 WL 2947900, at * *l-2 (Mich. App. July 19,
2012) ("Unless the premises are redeemed within the time
allowed, ... the mortgagor's rights in and to the
property are extinguished"); Awad v. Gen. Motors
Acceptance Corp., 2012 WL 1415166, at *4 (Mich. App.
Apr. 24, 2012) ("Although she filed suit before
expiration of the redemption period, Awad made no attempt to
stay or otherwise challenge the foreclosure and redemption
sale. Upon the expiration of the redemption period, all of
Awad's rights in and title to the property were
extinguished"). . . . Because plaintiff no longer has
any interest in the property at issue, the complaint must be
dismissed for lack of standing.
Plaintiffs claims also fail because plaintiff has forfeited
any right he may have had to challenge the sheriffs sale by
failing to act "promptly and without delay."
Day Living Trust v. Kelley, 2013 WL 2459874, at *9
(Mich. App. June 6, 2013). Plaintiff did not file the instant
action until the redemption period had nearly expired. This
hardly qualifies as "prompt" action. Nor has
plaintiff made a "clear showing of fraud or
irregularity" by the defendant as regards the
foreclosure process, as he must in order to successfully
challenge the foreclosure post sheriffs sale. El-Seblani
v. IndyMac Mortgage Servs., 510 Fed.Appx. 425, 428 (6th
Flowers v. CitiMortgage, Inc., No. 15-CV-10546, 2015
WL 13049852, at *l-2 (E.D. Mich. May 4, 2015).
present case, the Court's assessment of plaintiffs'
complaint is the same as in Flowers. Plaintiffs do
not show that they have redeemed the property (or that they
ever attempted to do so, to say nothing of
"promptly"), and they make no allegation of fraud
or irregularity in the foreclosure process. Plaintiffs
therefore lack standing to sue, and the complaint must be
dismissed. Plaintiffs' allegation that the mortgage
assignment was somehow irregular is irrelevant to the
propriety of the foreclosure, as plaintiffs also lack
standing to challenge the assignment. See, e.g., ...